The Road Ahead: Gaps, Leaks and Drips

• Author: Michael J. Glennon
• Position: Professor of International Law, Fletcher School of Law and Diplomacy, Tufts University
• Pages: 362-386

International Law Studies 2013

362

M

The Road Ahead:

Gaps, Leaks and Drips

Michael J. Glennon*

I. INTRODUCTION

ight there be gaps in the international rules governing cyber conflict,

and if so, are they likely to be filled? Is this the right way to think about

these questions?

Whether gaps exist in international law seems at first to be a technical,

almost marginal issue. On analysis, however, the question

1

emerges as one

* Professor of Internatio nal Law, Fletcher School of Law and Diplomacy, Tufts Un i-

versity. © 2012 by Michae l J. Glennon. This paper draws upon The D ark Future of Cyber-

Security Regulation, 6 JOURNAL OF NATIONAL SECURITY LAW AND POLICY 563 (2012). I

thank Beau Barnes for research assistance and Cec ile Aptel, William Banks, Robert

Barnidge, Toni Chayes, Matt Hoisington, Peter Margulies, Michael Matheson, Vijay Pad-

manabhan, Alexandra Perina, Robert Sloane, Gary Solis and Cecilia Vogel for comments

on an earlier draft. Errors and views are my own.

1

. The literature on the broader qu estion of lacunae and non li quets in international law

is neither new nor thin. See MALCOLM N. SHAW, INTERNATIONAL LAW 92–93 (5th ed.

2003); Daniel Bodansky, Non Liquet and the Incompleteness of International Law, in INTERN A-

TIONAL LAW, THE INTERNATIONAL COURT OF JUSTICE AND NUCLEAR WEAPONS 153

(Laurence Boisson de Chazournes & Philippe Sands ed s., 1999); Ole Spiermann, Lotus and

the Double Structure of International Legal Argument, in id. at 131; Prosper Weil, “ The Court Can-

not Conclude Definitively . . .”: Non Liquet Revisited, 36 COLUMBIA JOURNAL OF TRANSNA-

TIONAL LAW 109 (1997); Julius Stone, Non Liquet and the Function of Law in the International

The Road Ahead Vol. 89

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that goes to the very “source of validity of international law,” rather in the

manner that questions posed by quantum mechanics go to the heart of the

physical structure of the universe.

2

Nowhere are the issues more urgent or

far-reaching than in the realm of cyber war.

Press reports about Stuxnet

3

and related activities suggest the unease

with which cyber activities fit within the framework of existing rules. Was

“Olympic Games,” the covert operation in which Stuxnet was employed, a

use of force within Article 2(4) of the United Nations Charter? Did Olym-

pic Games constitute an “armed attack” under Article 51which would

have permitted defensive use of force by Iran against the United States and

Israel? Is this an international armed conflict governed by international

humanitarian law? Is the United States unlawfully using civilians in com-

bator are the persons at the keyboards combatants because they are di-

rectly participating in hostilities? If so, who are the combatants? The Cen-

tral Intelligence Agency’s computer staff? The officer who pushed the “en-

ter” button? Does it matter whether they fail to “carry arms openly” or

wear a “fixed distinctive sign recognizable at a distance”?

4

Can they be

prosecuted if they’re captured by Iran, or extradited to Iran by a friendly

State?

5

Community, 35 BRITISH YEARBOOK OF INTERNATIONAL LAW 124 (1959); Hersch Lauter-

pacht, Some Observations on the Prohibition of “ Non Liquet” and the Completeness of the Law, in

SYMBOLAE VERZIJL 196 (Marinus Mijhoff ed., 1958), reprinted in 2 HERSCH LAUTERPACHT,

INTERNATIONAL LAW: COLLECTED PAPERS OF HERSCH LAUTERPACHT 213 (Elihu Lau-

terpacht ed., 1975); John Dickinson, The Problem of the Unprovided Case, UNIVERSITY OF

PENNSYLVANIA LAW REVIEW 115 (1932).

2

. See Stone, supra note 1, at 125.

3

. See, e.g., David E. Sanger, Obama Order Sped Up Wave of Cyberattacks Against Iran,

NEW YORK TIMES, June 1, 2012, at A1.

4

. See Convention Relative to the Treatment of Prisoners of War art. 2, Aug. 12, 1949,

6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Prisoners of War Convention].

5

. Similar questions arise in connection with drone strikes. S ee Gary Solis, America’s

Unlawful Combatants, WASHINGTON POST, Mar. 12, 2010, at A17. For thoughtful considera-

tion of whether gaps exist in the rules governing detention during conflicts with non -State

groups, see John B. Bellinger III & Vijay M. Padmanabhan, Detention Operations in Contem-

porary Conflicts: Four Challenges for the Geneva Conventions and Other Existing Law, 105 AMERI-

CAN JOURNAL OF INTERNATIONAL LAW 201 (2011).